[2019] FWC 8673
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Hao Le Minh Nguyen
v
G8 Fashions Pty Ltd
(U2018/13196)

DEPUTY PRESIDENT ASBURY

BRISBANE, 23 DECEMBER 2019

Application for an unfair dismissal remedy – extension for filing granted – compensation ordered.

[1] Ms Hao Le Minh Nguyen (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by G8 Fashions Pty Ltd (the Respondent). The Respondent operates retail clothing stores selling women’s clothes and accessories. The Applicant commenced employment sometime in June 2016 at the employer’s retail operation called Melrose Avenue located at Direct Factory Outlet (DFO) Brisbane, Skygate. The Applicant was employed as a full-time retail assistant and was rostered to work Monday to Friday.

[2] In her Form F2 Application filed on 19 December 2018, the Applicant states that she resigned her employment with effect from 12 December 2018 and was forced to do so due to a course of conduct engaged in by Respondent. The Applicant contends that this course of conduct was the Respondent standing her down without pay from 14 August 2018, forcing her to resign to take up other employment. The Respondent objected to the application and maintained that the Applicant was summarily dismissed on 14 August 2018 during a telephone conversation with a Director of the Respondent, Ms Hanh Le, or in the alternative on 15 August by text message sent by Ms Le. The Respondent contends that the application was filed outside of the 21-day period required by s.394(2) of the Act.

[3] It is not in dispute that the Applicant is a person protected from unfair dismissal and that the Respondent is not a small business employer. It is also the case that the Applicant’s employment did not end by reason of redundancy. The question of whether the Applicant was dismissed on 14 August 2018 or whether she resigned her employment on 12 December 2018 in circumstances that constituted constructive dismissal is a matter for determination. If it is determined the Applicant was dismissed on 14 August 2018, then it will be necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made. If not, and it is determined that the Applicant was dismissed, it will be necessary to determine whether the dismissal was unfair, and if so, the remedy (if any) that should be granted.

[4] Directions were set for the filing of material and the matter was dealt with by way of hearing. Both parties sought permission to be represented by lawyers at the hearing and permission was granted on the basis that I was satisfied that it would allow the matter to be dealt with more efficiently having regard to its complexity. The complexity was enhanced by the fact that the matter involved a jurisdictional objection and the persons involved in the matter were from a non-English speaking background.

[5] The Applicant was represented by Mr Miles Heffernan of Industrial Relations Claims and the Respondent was represented by Mr James McIntyre, of Verduci Lawyers. The legal representatives agreed on a statement of facts which was generally of little assistance in the matter. As will become apparent, both representatives conducted the case in a manner that left much to be desired. The Applicant’s representative chose not to cross-examine a key witness for the Respondent and the Respondent’s representative failed without reasonable explanation, to place before the Commission critical evidence that was referred to in witness statements filed for the Respondent. These are matters to which I will return.

EVIDENCE

[6] The Applicant gave evidence on her own behalf. Evidence for the Respondent was given by Ms Le, Director of the Respondent 1 and Ms Phan Thu Dung Le, a full-time sale assistant employed by the Respondent.2 DFO is a large shopping complex with approximately 145 retail stores and food outlets. It is open to the public from 10:00 am to 6:00 pm, Monday to Sunday. The exterior doors of the DFO are locked at 7:00 pm. The Respondent’s store, Melrose Avenue, operates between 10:00 am to 6:00 pm, Monday to Sunday.

[7] The Respondent uses a software called “Retail Man POS”, a software for shops and retail outlets used to manage sales and inventory. The software is installed on the store’s computer. In order to use the program, each employee is required to log on to the computer using a password. Each employee knows the password and can access the computer. The Applicant’s representative cross-examined Ms Le about technical issues with “Retail Man POS” 3 and her requirement that at the end of the business day staff send information about the sales to her via text message. In response to the proposition that the requirement to send a copy of the sales at the end of the day was due to the flawed software system, Ms Le’s evidence was that this was not the case. 4 Ms Le agreed that the system occasionally has issues but maintained that these had never involved the deletion of data or programs. The Applicant gave no evidence about issues with the computer system prior to the cessation of her employment, other than stating that Ms Le “knew that the IT system was broken”. What Ms Phan Thu Dung Le knew and when was not put to her in cross-examination and no further detail was provided by the Applicant.

[8] Ms Le states that on 5 August 2018 she was contacted by Ms Phan Thu Dung Le who advised that the Applicant was continually coming into work late, making personal telephone calls during work hours and that she held concerns that the Applicant was taking items from the store either without paying or incorrectly applying the staff discount. 5 Employees of the Respondent are entitled to a 30% discount on merchandise, however Ms Phan Thu Dung Le advised Ms Le that the Applicant was at times applying a 50% discount.6

[9] Ms Le stated that she contacted the Applicant on 6 August 2018 to advise her of the concerns Ms Phan Thu Dung Le had raised the previous day. During this discussion, the Applicant denied the allegations put to her. 7 Ms Le also said that she telephoned the Applicant several times over the next few days, but the Applicant continually denied any wrongdoing. The Applicant said that Ms Le did telephone her on 6 August to discuss items that Ms Le said the Applicant took without paying. The Applicant said that she told Ms Le that she had paid for the items and wrote it on end of day statements. The Applicant also said that she asked Ms Le for proof of the allegations but Ms Le did not show her any proof. The Applicant denied that the discussion was about coming to work late. Further the Applicant said that she sent video footage and a text message to Ms Le on 8 August to demonstrate that what Ms Phan Thu Dung Le had said about her was false. Ms Le did not reply until 10 August and told the Applicant that she would read the text message when she was free in the evening but did not contact the Applicant about these matters. The Applicant denied that Ms Le telephoned her several times after 6 August.

[10] On Saturday 11 August 2018 (a day the Applicant was not rostered to work) the Applicant attended the store after opening hours, around 6:30 pm – the exact time and length of time the Applicant was in the store is in dispute. The Applicant was accompanied by Ms Thi Gia Han Nguyen (Hannah), employed at the time by the Respondent as a sales assistant and a male person. 8 According to Ms Le, this was evidenced in CCTV footage obtained from a DFO security camera.9 The Applicant did not dispute that she was at the store at the relevant time.

[11] During cross examination, it was put to the Applicant that she had no reason to be at the store on a Saturday. 10 The Applicant stated that she had been asked to go for dinner nearby with Hannah and Hannah’s boyfriend. Hannah had left her bank card in the store and they attended the store to retrieve it.11 The Applicant said that she did not touch the computer when she attended the store on 11 August 2018.12

[12] Ms Phan Thu Dung Le stated that upon her arrival at work on 12 August 2018 she was informed by another colleague that the “Retail Man POS” software had been removed from the store’s computer. In evidence submitted by the Respondent, the “Back Up” folder, that contained backup files of Retail Man daily sales data, had been last modified at 6:43 pm on 11 August 2018 and the “RMan” folder, that contained the file required to run the software, had been last modified at 6:45 pm on 11 August 2018. The modifications resulted in the sales data from June to July 2018 and the file to run the software being deleted. Ms Phan Thu Dung Le tendered screen shots of a computer screen showing the modifications to the computer programs at those times. No other evidence about the alleged deletions was provided.

[13] Ms Phan Thu Dung Le contacted Ms Le on 12 August 2018 to advise of the missing files. Ms Le told Ms Phan Thu Dung Le to contact DFO security. Two security officers attended at the store and Ms Phan Thu Dung Le told them what had happened. Later that day the Manager of DFO security came to the store and showed Ms Phan Thu Dung Le a photograph obtained from DFO security footage on Saturday 11 August. A screenshot of the photograph was tended by Ms Phan Thu Dung Le. The image showed the Applicant, Hannah and James (Hannah’s boyfriend) exiting DFO at 6.48 pm. Ms Phan Thu Dung Le said that the Applicant did not work on that date and could not have been shopping because all the retail stores were closed at that time.

[14] Ms Phan Thu Dung Le also said that only Melrose Place staff have keys to the store and know where the Retail Man backup files are located. Further, Ms Phan Thu Dung Le said that the Applicant was under internal investigation as over the two months prior to August 2018 she had been showing up for work wearing “new arrival” clothing from the store and while she had made small payments, these were insufficient to cover the cost of the clothing the Applicant was wearing. The Applicant’s representative did not require Ms Phan Thu Dung Le for cross-examination.

[15] The Applicant attended for work on 14 August 2018 which was her next rostered shift. Upon arriving at work the Applicant said she noticed that the lock had been changed and she could not open it. The Applicant states that Ms Phan Thu Dung Le told her she could not enter the store as there was a police investigation and that the Applicant should contact Ms Le. The Applicant states that Ms Le told her that there was camera footage showing that the Applicant had entered the shop and that an investigation would be conducted. The Applicant also said that Ms Le told her that a report had been made to the police. The Applicant said that she asked Ms Le why she had contacted the police before having a discussion with the Applicant and was told that she had broken the computer and/or damaged the shop. The Applicant said that she eventually found out that Ms Le thought that she had interfered with the point of sale data on the computer. The Applicant denied that she had done this and said that she was not told at the time that this was the reason for her “stand down”.

[16] Ms Le said that the Police attended at the store on 13 August 2018. Ms Le also said that she attempted several times to contact the Applicant by telephone on that date, but the Applicant did not answer or return Ms Le’s calls. On 14 August 2018 the Police contacted Ms Le and Ms Le confirmed that she wished to pursue a formal criminal investigation. Ms Le said that shortly after her conversation with the Police she telephoned the Applicant. The agreed statement of facts records that the telephone call lasted for approximately 9 minutes and that the Applicant was told that she was the subject of a police investigation.

[17] Ms Le states that the Applicant told her that she returned to the store to collect a credit card. Ms Le said that she did not believe the Applicant as CCTV footage showed that she had been in the store for around 20 minutes and this was much longer than necessary to collect the credit card. The Respondent did not tender the CCTV footage or any analysis of it by DFO security. Ms Le said that she told the Applicant that she was not to return to work because of serious misconduct – namely disciplinary issues which Ms Le had previously raised with the Applicant and the Applicant entering the store after hours without permission. Ms Le said that she also told the Applicant that she had someone to replace her and Hannah because of this incident. Ms Le also said that the Applicant has not received any wages or other entitlements from the Respondent since 14 August 2018.

[18] Ms Le maintained that the Applicant was not forced to resign in December 2018 and that Ms Le terminated the Applicant’s employment on 14 August 2018 and told her so at that time. Ms Le agreed that the Applicant did not get a separation certificate or a termination letter. Ms Le said that the Applicant was terminated for a range of conduct issues the most serious of which was entering the store. The Respondent’s investigation established that the Applicant entered the store without permission at or around the time that the point of sale data went missing. Ms Le said that this was serious misconduct and she made the decision to terminate the Applicant’s employment immediately, having considered the result of the investigation.

[19] Under cross-examination it was put to Ms Le that she had never used the words “serious misconduct” in the conversation with the Applicant on 14 August 2018. Ms Le said in response that in Vietnamese, the term “serious misconduct” is not used. Ms Lee conceded that she did not use the word termination during the conversation, and in response to a question about how she terminated the Applicant’s employment without using the word dismissed, Ms Le stated that she told the Applicant to stop work. 13 However, shortly after this exchange Ms Lee said that she stated during the phone call that the Applicant was terminated, and said to the Applicant “now the police involved so you no longer working here anymore”.14

[20] The Applicant maintained that Ms Le notified her that she was not to go to work while the police conducted their investigation. 15 It was the Applicant’s understanding that while the police investigation was underway, she was stood down however remained employed by the Respondent. The agreed statement of facts records that the Applicant was charged by Police on 14 August 2018 and was required to attend for a first court date on 3 September 2018. The Applicant said that she was required to go to court every couple of weeks from August 2018 until April 2019 when she was told that charges were dropped because the Police had no evidence against her.

[21] The Applicant tendered some text message exchanges with Ms Le which were in Vietnamese and were translated into English by the Applicant. The agreed statement of facts records that the translations of the text messages between the Applicant and Ms Le which were set out in the Applicant’s witness statement are accurate. The first text message was sent by the Applicant on 14 August 2018 at 19.49 as follows: “Hi sis, do you want me to go to work tomorrow?” The Applicant did not receive a response to that text message.

[22] The Applicant sent a text message in Vietnamese to Ms Le on 15 August 2018 in the following terms:

Applicant:

Hi sis, within the time until we go to the Court, do you want me to go to work?

Ms Le:

No, Amy has found someone to replace for you and Hannah.

Applicant:

Okay!

[23] The Applicant said in her oral evidence that the term “court” used in her text message meant when she was to meet with the Police on the 3 September 2018. The Applicant said that she considered Ms Le’s text message was a suspension until the time the police investigation had concluded. On 23 August 2018, Mr Dong Bui, an Accountant for the Respondent, located in Melbourne, texted the Applicant regarding her leave. The Applicant said that the text exchange between herself and Mr Bui furthered her understanding that her employment had not been terminated on the 14 August 2018. The text exchange between the Applicant and Mr Bui on 23 August 2018 and 24 August 2018 is as follows:

Mr Bui:

Have you used your annual leave? What about sick leave? I want to pay all of it.

Applicant:

I have nine days of sick leave.

Mr Bui:

Sick leave, when you have a day off, cannot be paid. Only annual leave can be paid. But you used all your annual leave already.

Applicant:

I have day off bit time. I can’t help pay.

   

Mr Bui:

I think so. I afraid so, sis.

Applicant:

“Crying emoji”.

Can I get my sick leave? On Tuesday 14 August I’m going to work, but Hanh told me not work today, so I’m going home. Can I have pay on that Tuesday?

Mr Bui:

You have maybe leave, like temporary termination, so sick leave it can be count, so just wait until you get final result, then – so they will see.

Applicant:

Thank you, Dong.

[24] The accuracy of the Applicant’s translation was disputed by the Respondent in cross-examination. It was put to the Applicant that it was not Mr Bui’s decision to put her on a temporary termination. The Applicant conceded this but maintained that Mr Bui would have been made aware of the situation by Ms Le. 16 The Applicant also agreed that in the text message exchange with Mr Bui he stated that he wanted to pay out all of her leave. The Applicant agreed that the text message from Mr Bui said that she could not be paid her sick leave but denied that Mr Bui stated that this was because her employment had ended. No alternative translation of the text exchange was put before the Commission by the Respondent.

[25] The agreed statement of facts records that the Applicant attended the Magistrates Court on 20 September 2018 for a plea hearing where she did not enter a plea. The Applicant said that as she had not received any further communication from the Respondent, she attempted to call Ms Le on the 20 September 2018. As Ms Le did not answer, the Applicant sent a text message to Ms Le following what the Applicant said was her second interview with the police, but is recorded in the agreed statement of facts as the plea hearing. At 16.59 on 20 September 2018 the Applicant sent a text message to Ms Le as follows:

“Hey Hanh, I tried to call you many times but you didn’t pick up the phone. I went to the Court today, but the police haven't had any more evidence, and the Magistrate wanted me to come to another Court again to see if the police could find any evidence.  I haven't come to work for six weeks already and I don't know when the investigation would be finished.  I asked around and they told me that during an investigation I still could come to work, or I still could receive wage until the decision is made, but I haven't received any payments for the last six weeks.  I hope that you will give me an explanation soon.  Thank you, sis”.

[26] Under cross-examination, it was put to Ms Le that there was no evidence that the Applicant did anything to the store’s computer. 17 Ms Le stated that “there is no evidence, but I know one or both of them delete the data in the computer”.18 It was also put to Ms Le during cross-examination that the text messages sent by the Applicant asking when she could come back to work were an indication that she did not understand she had been dismissed. Ms Le was asked why she had not responded to any of these messages from the Applicant clarifying that she had been dismissed. In response, Ms Le said that the communications from the Applicant was the Applicant trying to get Ms Le to change her mind about terminating her on the 14 August 2018.19

[27] In October 2018, the Applicant commenced employment at a take-away food shop. It was put to the Applicant during cross-examination that this indicated that she did not intend to return to work at the Respondent’s store. The Applicant denied this, and in her oral evidence stated that she had been awaiting the outcome of the police investigation, and that she had to get another job to pay her bills and expenses. 20

[28] Also in October 2018 the Applicant engaged a legal representative to seek payment of her entitlements. On 16 October 2018, the Applicant’s legal representative at the time sent a letter to the Respondent requesting payment of outstanding entitlements totalling $14,449.80. The amount included $6,603.60 of underpayments based on the General Retail Industry Award, and $7,846.20 for 9 weeks’ of pay whilst the Applicant was stood down. The Applicant states that there was no response to this letter. The letter was shown to Ms Le during cross-examination and the proposition was put to her that the letter placed her on notice that the Applicant believed she had been stood down. Ms Le did not agree with the proposition that this was her fourth opportunity to tell the Applicant that her employment had been terminated and she had failed to do so. 21

[29] On 11 December 2018, the Applicant sent a letter to the Respondent in the following terms:

“By this letter, I confirm my resignation from my employment with G8 Fashions, effective 12 December 2018.

Since you have stood me down without pay, I feel I have no choice but to resign from my position with G8 Fashions.

Yours sincerely,
Hao Le Minh Nguyen”

[30] The Applicant’s evidence is that as she had received no response to her text messages and attempts to contact Ms Le, she made an unfair dismissal claim on 19 December 2018. In that application the Applicant asserts she was constructively dismissed on 12 December 2018. It was contended by the Applicant that the Respondent stood her down without pay for an extended period of time, and the Respondent’s failure to inform the Applicant of the allegations or return her calls amounted to conduct that placed the Applicant in a position where she felt she had no choice but to resign on 12 December 2018.

[31] In relation to the Police charges, the Applicant tendered a Form 54 Verdict and Judgement Record dated 11 April 2019 indicating that in relation to a charge of “Use restricted computer without consent and cause or intend to cause detriment, damage or gain” the judgement of the Court was that there was no evidence to offer.

[32] Ms Le tendered an email said to have been received by her from a member of the Queensland Police force indicating disappointment with the verdict of the Court and stating that a conviction was not recorded because all employees had access to the computer, and the Applicant had a key to the premises and was not breaking and entering the premises. That email also states that there is a forensic computer report indicating that the data was deleted from the computer while the Applicant and Hannah were in the store and that the time of the deletion coincides with CCTV footage showing both the Applicant and Hannah in the store. The email recommends that Ms Le make a Freedom of Information (FOI) request to obtain the forensic report.

[33] Ms Le said under cross-examination that she had made an FOI application but at the time this matter was heard, had not received any response. When questioned about why she had not included this in her statement or tendered a copy of the FOI request, Ms Le said that her husband had completed the necessary paperwork. Ms Le also agreed that she had not instructed her solicitor to obtain the report. 22

[34] The Applicant submits that she was forced to resign her employment on 12 December 2018 and that her application for an unfair dismissal remedy was lodged within the required time. The Applicant disputes the Respondent’s submission that she was dismissed on 14 August 2018 and maintains that there was no verbal or written confirmation of her dismissal. The Applicant asserts that there was no valid reason for her dismissal and that at no time was she told by Ms Le that she had been dismissed or the reasons for this. The Applicant further asserts that there was no opportunity for her to respond to the reasons for dismissal and that she was not warned about any of the alleged conduct issues that Ms Le referred to in her evidence.

[35] The Respondent submits that the Applicant was summarily dismissed by Ms Le during the telephone conversation on 14 August 2018 or alternatively on 15 August 2018 which was the date the Applicant was advised of the termination of her employment by text message. The text message clearly stated that Ms Le, the owner of the Respondent, had found someone to replace the Applicant which is sufficiently clear to constitute a dismissal. In relation to the Applicant’s resignation letter on 12 December 2018 it is submitted that if the Commission accepts that the Applicant’s employment ended at a date later than 15 August 2018, the letter was sent two months after the Applicant found alternative employment. This makes it arguable that the Applicant made the decision to resign her employment voluntarily and the Applicant has failed to discharge the onus that she did not resign voluntarily and to establish that she was forced to do so due to the conduct of the Respondent.

[36] In circumstances where employment ended on 14 August 2018, the Commission has discretion to extend the time limit in exceptional circumstances having regard to the matters if s.394(2) of the Act. The Respondent contends that the Applicant has not placed any cogent evidence before the Commission to explain the delay in filing the application and the lengthy delay should give rise to a presumption of prejudice to the employer. It is further contended that save for lodging this application, the Applicant has taken no steps to dispute the dismissal and rather “it can be inferred from the Applicant’s evidence that she has simply waited until 12 December 2018 (nearly four months after her last day at work) to purportedly resign her employment”. This delay, it is submitted, must weigh heavily against the Applicant in seeking any extension of time.”

[37] Whether the Commission finds that the Applicant was dismissed on 14 August or 12 December 2018, the Respondent submits that the dismissal was not harsh, unjust or unreasonable. In this regard there was a valid reason for the Applicant’s dismissal being the history of performance and conduct issues and the entry into the Respondent’s premises without authorisation on a day when the Applicant was not rostered to work. The Respondent asserts that “on a reasonable inference” the Applicant was responsible partly or totally for the removal of data from the Respondent’s computer system. This constitutes a valid reason for dismissal and is serious misconduct.

[38] The Respondent asserts that the Applicant was notified of the reason for dismissal and given an opportunity to respond to that reason during the telephone discussion with Ms Le on 14 August 2018. It is also asserted that the Applicant was warned of previous conduct issues during a telephone conversation with Ms Le on 6 August 2018. The Respondent submits that the Commission should find that the Applicant’s employment was terminated by the Respondent:

  On 14 August 2018 by telephone;

  On 15 August 2018 by text message; or

  In mid-October 2018 when the Applicant began working elsewhere.

[39] In any case the application was made outside the time required in s.394(2) and the Applicant should not be granted an extension of time. It is also submitted that in all the circumstances, the termination of the Applicant’s employment was not harsh, unjust or unreasonable.

CONSIDERATION

When did the employment relationship between the Applicant and the Respondent end?

[40] With some difficulty, I have determined that it is more probable than not that the Applicant’s employment ended on 14 August 2018 or shortly thereafter. The evidence establishes that on that date the Applicant attended for work and found that the lock on the store had been changed and she did not have access. The Applicant was told by Ms Phan Thu Dung Le to telephone Ms Le and that she could not enter the shop as there was a police investigation. Also on 14 August 2018, the Applicant was charged with a serious offence – “Use restricted computer without consent and cause or intend to cause detriment, damage or gain”. On any view, these were serious matters that should have alerted the Applicant to the fact that her employment status was in doubt.

[41] According to the Applicant’s evidence, Ms Le told the Applicant that she had damaged the shop or the computer and that there was an investigation underway. Ms Le ignored the Applicant’s text message sent on 14 August in relation to whether she was required to work on 15 August and when the Applicant sent a further text on 15 August asking whether she was to attend work until she went to court, Ms Le responded on 15 August 2018 by stating that Ms Phan Thu Dung Le had found someone to replace the Applicant and Hannah. It is also the case that the Applicant was not paid from 14 August 2018. Further, the Respondent’s Accountant was having discussions with the Applicant about paying out her entitlements to annual leave and sick leave in circumstances where the Applicant knew she had not requested to take annual leave and she was not sick. If I am wrong on this point and the Applicant’s employment continued past 14 August 2018, then my view is that the outer limit of the Applicant’s employment was October 2018 when she obtained alternative employment and engaged a lawyer to seek entitlements to wages. In my view the subsequent resignation letter was not a genuine resignation in circumstances where the Applicant knew or should reasonably have known that she had been dismissed.

[42] However, I also accept that conduct of Ms Le in relation to her dealing with the termination of the Applicant’s employment was appalling. If the employment ended in October 2018 then it ended because of a course of conduct engaged in by Ms Le involving non-communication with the Applicant in relation to her employment status, a failure to pay her entitlements on termination (or to provide a payslip accounting for those entitlements) and an unreasonable failure to respond to communication both in writing and by telephone from the Applicant in relation to the status of her employment. When solicitors for the Applicant wrote to Ms Le asserting the Applicant was still employed, Ms Le can have been in no doubt that this was the Applicant’s position. All of these matters should have put Ms Le on notice that the Applicant was asserting that she was still employed, and her non-responsiveness was completely unreasonable.

[43] It was also unfair for Ms Le not to have told the Applicant in direct terms that her employment was terminated. This is a factor I have considered later in this decision. However, it does not alter the fact that the Applicant’s employment was terminated at the earliest on 14 August 2018 and at the latest by the end of October 2018. The application for an unfair dismissal remedy was not made within the required time and I turn now to consider whether the Applicant should be granted a further period in which to make her application.

Should the Applicant be granted a further period to make her application?

[44] By virtue of s.394(2) of the Act, an application for an unfair dismissal remedy must be made within 21 days of the dismissal taking effect or within such further time as the Commission allows under s.394(3), which provides as follows:

(3) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position

[45] In Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers 23 a Full Bench of the Commission characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 24

[46] In summary, the approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 25

[47] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 26 Each of the matters in s.394(3) is considered below.

[48] In relation to the reason for the delay, I am satisfied and find that it was the total failure of the Respondent to communicate to the Applicant that her employment had been terminated. Ms Le had several opportunities to do so and failed to properly advise the Applicant that she had been dismissed. As previously stated, the lack of clarity which attended Ms Le’s dealings with the termination of the Applicant’s employment was appalling. Given the lack of clarity in Ms Le’s communication with the Applicant I accept that the Applicant did not become aware of her dismissal at the time it was effected, and for several months after that time. This factor weighs in favour of a further period being granted.

[49] I do not accept that the Applicant took no steps to dispute her dismissal other than filing an unfair dismissal application. To the contrary, the Applicant sent several text messages to Ms Le querying when she would be allowed to return to work and went to the extent of asserting that she was still employed by way of a letter from a law firm in October 2018. I do not accept Ms Le’s evidence that these text messages were an attempt by the Applicant to convince Ms Le to change her mind about the dismissal. Ms Le could not reasonably have believed that this was the purpose of the text messages and in my view any reasonable employer would have been placed on notice that the Applicant was not aware that her employment had been terminated or at very least was asserting that she was still employed, and acted promptly to disabuse the Applicant of this view. This factor weighs in favour of a further period being granted.

[50] I accept that the Respondent will suffer prejudice as a result of the delay in the Applicant filing her unfair dismissal application. However, the Respondent has significantly contributed to its own prejudice by the conduct of Ms Le in her dealings with the Applicant. Had Ms Le dealt with the termination of the Applicant’s employment appropriately the delay would not have been incurred. Further, there is no evidence of any special prejudice such as the non-availability of witnesses due to delay or lack of recollection of events. The only prejudice suffered by the Respondent is that it has been required to defend the application and this is no different than if the application was filed within time. Accordingly, this factor weighs in favour of granting a further period or at worst is neutral.

[51] The application is not without merit and this is a neutral factor. In relation to other persons in a similar position, it is fortunate that most employers do not deal with the termination of employees in the manner that has been adopted by Ms Le and the circumstances of this case are unusual. Granting a further period in those circumstances will not be contrary to established principle. Neither are there any other employees of the Respondent in a similar situation. This criteria is therefore neutral.

[52] The discretion to grant a further period to the Applicant is triggered. I am also satisfied that it should be exercised for the reason that failure to exercise the discretion would allow the Respondent to benefit from its own unfair conduct in relation to the manner in which the Applicant’s dismissal was effected. Accordingly, I extend the time for the Applicant to make the application in U2018/13196 to 19 December 2018. I turn now to consider the merits of that application by reference to the factors in s.387 of the Act.

Was the dismissal unfair?

Legislation

[53] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[54] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 27

Was there a valid reason for the Applicant’s dismissal?

[55] I am satisfied that there was a valid reason for the Applicant’s dismissal although my conclusions in this regard have not been reached without difficulty. The Respondent had the onus of establishing that there was a valid reason for dismissal. The allegations against the Applicant were serious. Appended to Ms Le’s witness statement was an email from a member of the Queensland Police Service referring to a statement by a forensic computer analyst as to when the particular files were deleted. Reference was also made in that email to CCTV footage establishing when the Applicant and her companions were in the store at the time the deletions occurred. The Police Officer’s email recommended that Ms Le obtain this information by use of a Freedom of Information application.

[56] Despite the fact that the Respondent was legally represented at the hearing (and before the hearing), no effort was made to obtain that information. Ms Le’s evidence that her husband had made a FOI application was not particularly convincing. Further the evidence was given in cross-examination. It would be expected that proper preparation for this hearing would have included efforts to obtain such information and at very least evidence of those efforts if they were not successful. Instead the Commission was asked to rely on an image of a computer screen which appeared to have been taken on a mobile telephone to establish the critical evidence of misconduct by the Applicant that the Respondent was required to prove at hearing.

[57] The Applicant’s representative compounded the difficulty by opting not to cross-examine Ms Phan Thuy Dung Le. Accordingly, her evidence was uncontested. On balance, it is sufficient to establish that the Applicant entered the Respondent’s store outside of working hours and remained there for a period. The Applicant’s explanation for doing so was not convincing. Hannah was not called as a witness to verify that she had left her eftpos or credit card in the store.

[58] Further, Ms Phan Thuy Dung Le’s evidence establishes on the balance of probabilities that the two programs on the Respondent’s computer system were altered or deleted at the time the Applicant was in the store. I do not accept that the Respondent’s computer spontaneously malfunctioned at the exact time the Applicant and her companions were in the store. Such a coincidence would be passing strange. The Applicant’s representative accepted in submissions that the timing of the Applicant’s presence in the store was “not fabulous”. That is an understatement. The submission that: “There’s no causal nexus between [the Applicant’s] behaviour and the deletion” and “All we know is the computer has crapped itself and we don’t know how” was also not convincing. 28 The Applicant was unable to provide an explanation for the deletion of the data at a time she was present in the store and I do not accept that she could have been in the store – allegedly to collect the credit card that she claims Hannah left in the store – and not have known that the computer was accessed. There was no reason for the computer to have been accessed other than to delete the data.

[59] On balance, I am satisfied and find that the Applicant was present in the store when critical retail sales data was deleted from the Respondent’s computer and that she either deleted the data or knew or should have known that the computer was accessed when it should not have been. While there is insufficient evidence to establish that on the balance of probabilities the Applicant actually deleted the data, I am satisfied and find that her conduct was a valid reason for dismissal.

Was the Applicant notified of the reason?

[60] Notification of ‘the reason’ for dismissal relates to the ‘valid reason’ for dismissal. 29 Notification of the valid reason must be given before the decision to terminate is made,30 given in explicit and clear terms.31 Section 387(b) of the Act is included is part of a statutory framework by which the Commission is required to consider whether the dismissal of an employee is attended with substantive and procedural fairness. An important aspect of procedural fairness is that the reason for an employee’s dismissal is notified to the employee before the decision to dismiss the employee is taken. The plain meaning of the term “notified” is that information is provided in a formal manner. Notification of the reason for dismissal informs the subsequent matters required to be considered by the Commission in ss.387(c) and (d) of the Act. As a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty Ltd:32

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify the employee and give them an opportunity to respond after the decision to terminate their employment.”

[61] Sections 170CG(3)(b) and (c) of the former Workplace Relations Act were in similar terms to the present sections 387(c) and (d) of the present Act and respectively provided that for the purposes of arbitrating an application alleging that a dismissal was unfair the Commission must have regard to whether the employee was notified of a reason for termination of employment related to capacity or conduct and whether the employee was given an opportunity to respond to any such reason. As the Full Bench held in Crozier, ss. 170CG(3)(b) and (c) of the former Act were clearly related to the concept of procedural fairness.33 The same can be said in relation to sections 387(c) and (d) of the current Act.

[62] In the present case, I do not accept that the Applicant was notified of the reason for her dismissal in a manner that conforms with the requirement in s.387(b) of the Act. The telephone conversation between the Applicant and Ms Le lasted for nine minutes. Ms Le had not viewed any of the evidence and was acting on the basis of what Ms Phan Thuy Dung Le told her. It was apparent from Ms Le’s evidence that she had formed a conclusion about the Applicant’s conduct before she spoke to her. The Applicant was not provided with the details of the allegation or its basis – for example, the CCTV footage and the evidence of when the files were deleted was not shown to the Applicant.

Was the Applicant given an opportunity to respond to the allegation?

[63] It is axiomatic that an employee cannot have been given an opportunity to respond to any reason for dismissal based on capacity or conduct in circumstances where the employee is not notified of the reason with sufficient particularity to enable a proper response to be made. An employee must be given an opportunity to respond to the reason for dismissal before the decision to terminate is made. 34

[64] Given the failure to properly notify the Applicant of the reason for her dismissal, I am unable to be satisfied that she was given an opportunity to respond to the allegations. A proper opportunity would have involved the Applicant being advised about the allegations and that her employment was in jeopardy should she fail to provide an appropriate response. On Ms Le’s own evidence it is apparent that the Applicant was not provided with sufficient detail about what were very serious allegations, to enable her to respond.

Was there any unreasonable refusal to allow the Applicant to have a support person present to assist at any discussions relation to dismissal?

[65] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. 35 Given the manner in which the Applicant’s employment was terminated, this was not a relevant matter.

If the dismissal related to unsatisfactory performance – whether the Applicant was warned about that unsatisfactory performance before the dismissal?

[66] There was evidence that Ms Le had raised issues with the Applicant’s conduct and work performance prior to the events that resulted in the Applicant being dismissed. While the Applicant did not accept the validity of these matters, she did accept that they had been raised with her. To the extent that these issues also played a part in the decision to dismiss the Applicant I am satisfied that the requirement in s.387(e) has been met.

Did the size of the employer’s enterprise impact on the procedures followed in effecting the dismissal of the Applicant?

[67] In its Form F3 response to the application, the Respondent indicated that it had 48 employees at the time of dismissal. I accept that the size of the employer’s enterprise did impact on the procedures followed in effecting the dismissal and I have had regard to this.

Did the absence of dedicated human resource management specialists or expertise in the enterprise impact on the procedures followed in effecting the Applicant’s dismissal?

[68] The Respondent does not have dedicated human resource management specialists or expertise and I am satisfied that this also impacted on the procedures followed in effecting the dismissal and I have had regard to this.

Are there any other relevant matters?

[69] The Applicant was left in a difficult position as a result of the complete failure on the part of Ms Le to communicate that the Applicant’s employment had been terminated. This is a matter going to fairness which I have weighed in the balance in deciding whether the dismissal was unfair.

Conclusion in relation to unfair dismissal

[70] I am satisfied that the Applicant’s dismissal was unfair. While there was a valid reason for the dismissal it was effected in a manner that was procedurally unfair. In short, the misconduct of the Applicant does not outweigh the procedural unfairness which attended the dismissal and the totally unreasonable manner in which Ms Le dealt with the Applicant.

REMEDY

[71] Having determined that the Applicant’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that the Applicant was protected from unfair dismissal and that she was unfairly dismissed. I am also of the view that the Applicant should have a remedy for her unfair dismissal. I am satisfied that given the Applicant’s misconduct, that reinstatement is not appropriate and that trust and confidence necessary to an employment relationship has been destroyed. I have made the necessary findings that are prerequisite to awarding compensation.

[72] In relation to the assessment of compensation, s.392 of the Act provides as follows:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[73] I turn now to the particular criteria I am required to consider in deciding the amount of compensation to be awarded to the Applicant for his unfair dismissal.

The effect of the order on the viability of the Respondent – s.392(2)(a)

[74] There is no evidence that the order I propose to make will have an effect on the viability of Melrose Avenue.

Length of the Applicant’s service – s.392(2)(b)

[75] The Applicant had been employed by the Respondent for approximately 2 years and 2 months at the point she was dismissed, and this is not a period which calls for a significant award of compensation particularly given the conduct of the Applicant.

Remuneration the Applicant would have or would likely have received – s.392(2)(c)

[76] In circumstances where the dismissal is for a valid reason but is procedurally unfair to the extent that on balance it is harsh, unjust and unreasonable, I am of the view that the Applicant’s employment would have continued for a period of only a further four weeks. In this time, the allegations could have been properly put to the Applicant and she could have been given an opportunity to respond to them. I am satisfied that the Applicant would not have provided a reasonable response given that she has not been able to do so following a hearing of her unfair dismissal application where she had the chance to provide such an explanation. Had the Applicant remained in employment for a further four weeks, she would have earned an amount of $790.40 per week totalling $3,161.60.

[77] I note that it is strongly arguable that the Applicant has been paid at the level 1 rate under the General Retail Industry Award 2010 in circumstances where she is entitled to be paid at a higher rate. However that is a matter for other proceedings, and s.392(2)(c) does not provide that I can award compensation on the basis of the rate to which the employee was entitled. In any event, no evidence or submissions to this effect were placed before me by the Applicant’s representative and I accept that the Applicant’s weekly remuneration was as set out in the Form F3 filed by the employer, being $790.40 per week.

The Applicant’s efforts to mitigate loss – s.392(2)(d)

[78] The Applicant gained employment in October 2018 as she had not received any communication from the Respondent during the period. Given the period I have assessed that the Applicant would have remained in employment, I make no deduction for any failure to mitigate particularly given the position the Respondent placed the Applicant in through its failure to clarify that she had been dismissed.

The amount of any remuneration earned since dismissal – s.392(2)(e)

[79] Given the period I have assessed that the Applicant would have remained in employment and that the Applicant did not commence her new employment in that period, this consideration is not relevant.

The amount of any income reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation – s.392(2)(f)

[80] For the reasons set out above, this consideration is also not relevant.

Any other matter that the FWC considers relevant – s. 392(2)(g)

[81] There are no other matters I consider relevant.

Deduction for misconduct

[82] In all of the circumstances I make no deduction for misconduct given that the compensation I have ordered is approximate to the amount that the Applicant would have been entitled to had she been dismissed with notice rather than summarily.

CONCLUSION

[83] In summary I find as follows:

1. An order for the payment of compensation would not affect the viability of the Respondent’s business (s.392(2)(a)).

2. The length of the Applicant’s service favours the making of an order for compensation and no diminution of any amount that might otherwise be determined is warranted because of this circumstance (s.392(2)(b)).

3. But for her dismissal the Applicant would have received a further amount of $3,161.60 less tax according to law and superannuation contributions of $300.35 (s.392(2)(c)).

4. I make no deduction for contingencies.

5. I make no deduction on account of a failure to mitigate loss (s.392(2)(d)).

6. I make no deduction for remuneration earned since dismissal (s.392(2)(e)).

7. I make no deduction for income likely to be earned during the period between the making of the order and the actual compensation (s.392(2)(f)).

8. I make no deduction for misconduct (s.392(3)).

9. There is no requirement to cap the amount of compensation ordered.

[84] An Order requiring that G8 Fashions Pty Ltd pay to Ms Hao Le Minh Nguyen the amount of $3,161.60 to be taxed according to law and superannuation contributions of $300.35 will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr M. Heffernan, Industrial Relations Claims for the Applicant.

Mr J. McIntyre, Verduci Lawyers for the Respondent.

Hearing details:

Brisbane.

27 June.

2019.

Printed by authority of the Commonwealth Government Printer

<PR715553>

 1   Exhibit R3 – Witness Statement of Hanh Le.

 2   Exhibit R1 – Witness Statement of Phan Thuy Duong Le.

 3   Transcript PN538.

 4   Transcript PN548.

 5   Exhibit R3 – Witness Statement of Hanh Le.

 6   Ibid, annexure A.

 7   Ibid at [8].

 8   Exhibit R1 – Witness Statement of Phan Thuy Duong Le.

 9   Ibid.

 10   Transcript PN128.

 11   Transcript PN140-143.

 12   Transcript PN416.

 13   Transcript PN593

 14   Transcript PN678-679.

 15   Applicant’s Form F2 filed 19 December 2018.

 16   Transcript PN312.

 17   Transcript PN722.

 18   Transcript PN723.

 19   Transcript PN669

 20   Transcript PN319

 21   Transcript PN655.

 22   Transcript PN519-536.

 23   [2010] FWAFB 7251.

 24   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251 at [5].

 25   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.

 26   Ibid at [15].

 27   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR  410 at 465-8 per McHugh and Gummow JJ.

 28   Transcript PN857.

 29   Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at para. 41.

 30   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at paras 70–73, [(2000) 98 IR 137].

 31   Previsic v Australian Quarantine Inspection Services, Print Q3730 (AIRC, Holmes C, 6 October 1998).

32 (2000) 98 IR 151 at [73].

33 Ibid at [70].

 34   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at para. 75, [(2000) 98 IR 137].

 35   Explanatory Memorandum to Fair Work Bill 2008 at para. 1542.